Bradley v. Viking Insurance

Case: 21-60907 Document: 00516600297 Page: 1 Date Filed: 01/06/2023

United States Court of Appeals
for the Fifth Circuit
United States Court of Appeals
Fifth Circuit

FILED
January 6, 2023
No. 21-60907 Lyle W. Cayce
Clerk

DeMarkus Bradley, individually and on behalf of all
others similarly situated; Angela Hawkins,

Plaintiffs—Appellants/Cross-Appellees,

versus

Viking Insurance Company of Wisconsin,

Defendant—Appellee/Cross-Appellant.

Appeal from the United States District Court
for the Southern District of Mississippi
USDC No. 3:20-CV-640

Before Jones, Southwick, and Ho, Circuit Judges. 1
Leslie H. Southwick, Circuit Judge.
Two significant questions of Mississippi insurance law are posed in
this appeal of a denial of coverage for an automobile accident. One is whether

1
Judge Ho would certify the questions presented in this appeal to the Mississippi
Supreme Court. See, e.g., JCB, Inc. v. The Horsburgh & Scott Co., 941 F.3d 144, 145 (5th
Cir. 2019).
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uninsured motorist coverage can be denied simply because the driver, who
was the son of the insured, was not listed on the policy? We answer that
question “no.” The other is whether the policy can be voided because the
insured committed a material misrepresentation by failing in her application
for insurance to name, as required, those of driving age who lived in her
household? We answer that question “yes” and AFFIRM.
FACTUAL AND PROCEDURAL BACKGROUND
In March 2016, Angela Hawkins, DeMarkus Bradley’s mother,
applied for an automobile insurance policy with Viking Insurance. The
application required that certain other potential drivers be named:
I understand that I must report to the Company all persons of
legal driving age or older who live with me temporarily or
permanently, including all children at college. I understand
that I must report all persons who are regular operators of any
vehicle to be insured, regardless of where they reside.
The policy relevantly defined “regular operator” as a person old enough to
drive who resides in the insured’s home.
The application emphasized the importance of accuracy. One place it
did so was to declare that Viking relied on the answers:
We [Viking] rely upon you to provide us with accurate
information. This policy, your application (which is made a
part of this policy as if attached), and your Declarations Page
include all the agreements between you and us relating to this
insurance. If you have made any misrepresentations in your
application or when subsequently asked, this policy may not
provide any coverage.
Further, the policy defined “misrepresentation” relatively broadly as
providing information to us that is known by you to be false,
misleading or fraudulent. This could be presented to us during

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the application for coverage, or during the policy period. It
must affect either the eligibility for coverage and/or the
premium that is charged. Concealing information relevant to
the application, or maintenance of coverage, is also
misrepresentation.
Finally, the policy stipulated that “[i]f you misrepresent any fact or condition
that affects whether a risk is eligible or contributes to a loss, we reserve the
right to rescind the policy and/or deny coverage.”
At the time of Hawkins’ March 2016 insurance application, Bradley
lived with Hawkins, was a resident of her household, and was of legal driving
age. 2 Thus, Bradley was a regular operator of the Hawkins vehicles.
Hawkins, though, failed to disclose Bradley on her insurance application as a
regular operator. For policy renewals between March 2016 and the accident
in April 2018, Hawkins never added Bradley to her policy.
In April 2018, Bradley was operating Hawkins’ vehicle when he was
struck by an uninsured motorist. After the accident, Bradley submitted a
claim for uninsured motorist (UM) insurance. Hawkins’ policy contained
UM coverage 3 and stated that Viking
will pay damages for bodily injury which an insured person is
legally entitled to recover from the owner or operator of an
uninsured motor vehicle. The bodily injury must be caused by
a car accident and result from the ownership, upkeep or use of
an uninsured motor vehicle.

2
There is record evidence that DeMarkus Bradley was born in about 1994, and so
would have been around 22 years old in 2016.
3
Hawkins rejected UM coverage for her initial Viking policy, issued in 2016. By
the time of her 2018 renewal, which is the operative policy for the accident underlying this
litigation, she had UM insurance.

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An “insured person” under the Policy includes “a relative” of the
named insured and “any other person occupying [the] insured car with the
permission of” the named insured. Bradley therefore qualified as an insured
person. However, the policy stated that UM coverage was unavailable when
an unlisted regular driver is operating the vehicle:
This [UM] coverage does not apply to bodily injury sustained
by an insured person described by any of the following.
...
(8) While your insured car is being operated by a regular
operator who was not reported to us. The regular operator
must be reported on the original application for insurance or
otherwise disclosed to us and listed on your Declarations Page
before the car accident.
Viking denied Bradley’s claim because it found that Bradley was a
regular operator of Hawkins’ vehicle but had not been disclosed. Hawkins
admitted that Bradley was a driver living in her household who had not been
disclosed. Viking subsequently force-placed Bradley on the policy.
In October 2020, Bradley and Hawkins sued Viking, seeking damages
for a wrongful denial of benefits. Bradley and Hawkins asserted that
excluding drivers not listed on the policy violated Mississippi’s statutorily
prescribed UM coverage requirements.
After discovery, both parties moved for summary judgment. The
district court concluded that Viking’s unnamed driver exclusion was without
effect. Bradley v. Viking Ins. Co. of Wis., 570 F. Supp. 3d 389, 394 (S.D. Miss.
2021). Bradley, “as a resident member of Hawkins’ household and as a
person operating the vehicle with her permission, was an ‘insured’ for UM
purposes and was not excluded from coverage by” the policy’s unnamed
driver exclusion. Id.

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Nonetheless, the district court denied coverage because Hawkins had
failed to disclose in her initial application or in any renewal that Bradley was
a regular operator of the insured vehicle. Id. at 399. Those failures
constituted misrepresentations. Id. at 396. Under the policy, Viking could
deny coverage if the insured “misrepresent[s] any fact or condition that
affects whether a risk is eligible or contributes to a loss” and defined
“misrepresentation” as information that is “known by you to be false . . .
[and] affect[s] either the eligibility for coverage and/or the premium that is
charged.” Id. at 397 (quotation marks omitted). Hawkins’
misrepresentation, the court found, affected the premium charged, and
Viking therefore had the right to deny Bradley’s UM claim. Id. The court
granted Viking’s motion for summary judgment. Id. Both parties appealed.
DISCUSSION
We review the grant of summary judgment de novo. Nationwide Mut.
Ins. Co. v. Baptist, 762 F.3d 447, 449 (5th Cir. 2014). “When, as here, cross-
motions for summary judgment have been ruled upon,” this court examines
“each party’s motion independently.” Balfour Beatty Constr. L.L.C. v.
Liberty Mut. Fire Ins. Co., 968 F.3d 504, 509 (5th Cir. 2020) (quotation marks
and citation omitted). Summary judgment is proper when “there is no
genuine dispute as to any material fact.” FED. R. CIV. P. 56(a). In reviewing
the record, “the court must draw all reasonable inferences in favor of the
nonmoving party, and it may not make credibility determinations or weigh
the evidence.” Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 150
(2000).
We address two issues. The first is the subject of Viking’s cross-
appeal — does its unnamed driver exclusion violate public policy? The
second is appellants’ issue — did Viking properly deny coverage based on
misrepresentation?

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I. Unnamed driver exclusion
Mississippi’s UM statutes are set forth in Mississippi Code Sections
83-11-101 through 83-11-111. Section 83-11-101 requires that all automobile
insurance policies provide an “insured” with coverage of damages caused by
“the owner or operator of an uninsured motor vehicle,” unless a form
rejecting all UM coverage is signed by the insured. Miss. Code Ann. §§ 83-
11-101(1), (2), (4). 4 “Insured,” for purposes of UM coverage, includes
the named insured and, while resident of the same household,
the spouse of any such named insured and relatives of either,
while in a motor vehicle or otherwise, and any person who uses,
with the consent, expressed or implied, of the named insured,
the motor vehicle to which the policy applies, and a guest in
such motor vehicle to which the policy applies, or the personal
representative of any of the above.
Id. § 83-11-103(b). It is undisputed that Bradley, as a resident relative of
Hawkins, is an “insured” under this provision. Our initial question is
whether an insurer can limit this mandatory UM coverage through policy
language. Viking on cross-appeal insists that it can.
The Mississippi Supreme Court has not decided whether unnamed
driver exclusions violate the state’s statutory UM scheme. It has addressed
other exclusions, though. Most helpful is an opinion from that court
addressing a “named driver exclusion” in a policy which precluded coverage
if the insured’s husband were driving her car. Atlanta Cas. Co. v. Payne, 603
So. 2d 343, 344–45 (Miss. 1992). There, the husband of the insured was
driving when the vehicle collided with an uninsured motorist; the insurer

4
An insured has the right to reject all UM coverage by executing a form approved
by the state Department of Insurance. Miss. Code Ann. § 83-11-101(4). This appeal
concerns whether a limited rejection can be imposed through a policy provision.

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denied benefits. Id. The court stated that Mississippi’s UM statute
“commands that the injured party shall be able to recover from the UM carrier
‘all sums which he shall be legally entitled to recover as damages for bodily
injury or death from the owner or operator of an uninsured motor vehicle.’”
Id. at 346 (quoting § 83-11-101). It summarized that “the overwhelming
number of [UM exclusions] that this Court has considered have been found
to be void and against public policy,” and the named driver exclusion was no
exception. Id. at 347.
Since the Mississippi Supreme Court voids policy language that
excludes a specific individual from UM coverage, we have little doubt it
would void a more expansive unnamed driver exclusion. Yet, Viking spots
other language in Payne that, to its eyes, dictates the opposite conclusion.
The language appears after the Payne court held that named driver exclusions
are void, when it stated that “in order to limit uninsured motorist coverage,
‘it must be done in clear and unambiguous language.’” Id. at 348 (quoting
Hartford Accident & Indem. Co. v. Bridges, 350 So. 2d 1379, 1381 (Miss. 1977)).
The court continued by holding that “the burden of proof [is] on the insurer
to show that such an exclusion or any other quasi-rejection of uninsured
motorist insurance was a knowing and informed decision.” Id.
We find that were we to interpret this odd section of Payne to mean
that a partial exclusion of UM coverage will be valid so long as the policy
provision is clear and adequately disclosed, the opinion’s earlier holding as
to the named-driver exclusion would be eviscerated. Either the inconsistency
of the two sections was not recognized by the Payne court or their consistency
has been missed by this one. A federal district court attempted to explain
Payne by relying on the fact that the statement in Payne about limiting
coverage with unambiguous language was a quote from a precedent that
addressed “stacking” of UM coverages. Godwin v. United States, 2016 WL
6127405, No. 3:14-CV-00391, at *3 (S.D. Miss. Oct. 19, 2016) (discussing

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Bridges, 350 So. 2d at 1381). As the Bridges court put it, “[t]he question of
law is whether uninsured motorists coverage on three separate automobiles
in one policy of insurance can be aggregated or stacked.” Bridges, 350 So. 2d
at 1380. Thus, Godwin’s suggested meaning for Payne is that, as in Bridges,
the minimum UM coverage must be provided, but clear policy language can
block aggregating minimum coverage by stacking. Godwin, 2016 WL
6127405, at *3. Perhaps, but prohibiting the multiplication of UM coverage
if clear policy language is used is different than allowing an unambiguous
named-driver exclusion to carve out an exception to minimum UM coverage.
Of course, the Godwin court likely was not satisfied with its effort to explain,
either.
An excellent treatise on Mississippi insurance law does not suggest
Payne modified the requirement to provide minimum UM coverage:
The UM statute sets the minimum requirements for UM
coverage. An insurer may provide more coverage, but not less,
than that mandated by the statute. On the other hand, for
coverage beyond what is required by the statute — so-called
excess coverage — the parties to the insurance contract may
freely agree to restrictions as they see fit (or, more realistically,
as the insurer will impose).
JEFFREY JACKSON AND D. JASON CHILDRESS, MISSISSIPPI INSURANCE LAW
AND PRACTICE § 18:6 (2022). Payne is cited as one of the examples of
decisions striking policy provisions as unenforceable because they deny
minimum UM coverage. Id. at n.8.
We conclude, notwithstanding Payne’s reference to unambiguous
policy language, that Mississippi law requires the following: if UM coverage
is not rejected completely by the insured, the policy may provide more
coverage, but not less, than the statutory minimum. Therefore, whatever

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the confusing language from Payne means, it does not allow an unnamed
driver exclusion to eliminate the mandatory UM coverage set by statute.
II. Misrepresentation
The second issue is whether Viking properly denied UM coverage
based on misrepresentation. The district court stated that “coverage is
defeated by Hawkins’ failure to disclose in the application for coverage, or at
any other time prior to the accident, that she was not the only member of her
household of driving age and/or who had regular access to the insured
vehicle(s).” Bradley, 570 F. Supp. 3d at 394. The court referred to policy
language that Viking had the right to “deny coverage if the insured ‘made
any misrepresentations in your application or when subsequently asked,’ and
it defines misrepresentation as providing knowingly false information.” Id.
at 396. The court wrote that “it is undisputed that [Hawkins] knew she had
failed to provide required information” when she did not report to Viking all
persons of driving age who lived with her. Id.
The plaintiffs’ brief on appeal insists the district court erred by
allowing Viking’s common law right to void an insurance policy due to
material misrepresentations to defy “the UM Act that mandates all
automobile liability insurance policies contain uninsured motorist coverage
unless the coverage is rejected in writing.” The plaintiffs argue that because
Bradley is an “insured” under the UM statute, Hawkins’ policy could not
diminish his coverage.
On this issue, we have guidance from a Mississippi precedent
addressing required liability coverage. See Safeway Ins. Co. v. Dukes, 185 So.
3d 977 (Miss. 2015). There, Tiffany Dukes applied for insurance with
Safeway Insurance and completed an application that required her to disclose
all “regular, frequent” drivers of her vehicle. Id. at 978. Robert Hudson, not
disclosed on Dukes’s policy, was driving Dukes’s car when he injured a child.

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Id. Safeway denied the claim, concluding that the policy was voidable due to
the failure to list Hudson as a regular, frequent driver on her application. Id.
In an action between the injured child and Hudson, Safeway moved for
summary judgment, arguing that Dukes’s policy was void because she made
a false representation on her application. Id. The trial court disagreed that
the policy was void, concluding that the insurer was arguing for an exclusion
from the minimum liability (not UM) coverage required by state statute. Id.
at 979; see Miss. Code Ann. § 63-15-4.
On appeal, the Mississippi Supreme Court saw the question
differently. “[W]hether the terms of [Dukes’s] policy with Safeway covered
the accident” under Mississippi’s statutory insurance scheme and “whether
the policy, itself, was voidable” because of a false warranty, were two
separate issues. Id. at 981 (quoting Jones–Smith v. Safeway Ins. Co., 174 So.
3d 240, 242 (Miss. 2015)) (emphasis omitted). “[T]he question is whether
the policy itself is voidable, not whether the terms of the policy covered the
accident.” Id. at 981. Because “Dukes’s statement warranting that there
were no other regular, frequent drivers is not literally true,” her policy was
voidable and Safeway could properly deny coverage. Id. at 981.
As in Safeway, Viking is not seeking to enforce an “invalid exclusion
within a valid insurance policy.” Id. (quoting Jones–Smith, 174 So. 3d at 242)
(emphasis omitted). Instead, it argues coverage can be denied based on
misrepresentation. Though Safeway involved liability and not UM coverage,
we conclude the same reasoning applies here. Under Safeway’s logic, the
validity of an unnamed driver exclusion does not have any bearing on whether
Viking has the right to void its policy based on misrepresentation.
Before we consider how to apply Safeway, we address a distinction.
The Safeway Insurance Company applications in the two cited cases each
had language of warranty: “Applicant warrants that all regular, frequent

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drivers” are listed. Id. at 978. The Mississippi Supreme Court stated that
because the statement on the application that there were no other drivers was
“a warranty and not a misrepresentation, the materiality of Dukes’s failure
to disclose Hudson is not an issue.” Id. at 981 n.3. When, as here, there is no
warranty in an application, “[t]he materiality of a representation is
determined by the probable and reasonable effect which truthful answers
would have had on the insurer.” Jones–Smith, 174 So. 3d at 245 (quoting
Sanford v. Federated Guar. Ins. Co., 522 So. 2d 214, 217 (Miss. 1988)).
Was there, then, a material misrepresentation? This court rephrased
the standard just quoted by holding that an insurer can void a policy for
material misrepresentation if an insurance application “(1) [] contain[s]
answers that are false, incomplete, or misleading, and (2) the false,
incomplete, or misleading answers [are] material to the risk insured against
or contemplated by the policy.” Carroll v. Metro. Ins. & Annuity Co., 166 F.3d
802, 805 (5th Cir. 1999) (emphasis in original). We cited a Mississippi
precedent that held the particular misstatement there “might reasonably
have influenced the company not to make the contract of insurance.” Id. at
805 n.10 (citing Prudential Ins. Co. v. Russell’s Estate, 274 So. 2d 113, 116
(Miss. 1973)). We then identified additional relevant effects by stating that
“a fact is material if it might have led a prudent insurer to decline the risk,
accept the risk only for an increased premium, or otherwise refuse to issue
the exact policy requested by the applicant.” Id. at 805.
“Misrepresentation” also was defined in the Viking policy:
“providing information to us that is known by you to be false, misleading or
fraudulent.” Thus, the policy requires knowledge of the falsity. The
plaintiffs argue “the phrase ‘known by you to be false’ converts the inquiry
from an objective analysis to a subjective one regarding Hawkins’ intent.”
Because Hawkins testified she “did not intend to mislead or defraud
Viking,” the plaintiffs contend there is a fact dispute as to whether there was

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misrepresentation under the Policy. A standard definition of “knowledge”
is “awareness or understanding of a fact or circumstance.” BLACK’S LAW
DICTIONARY 950 (9th ed. 2009). Strictly as matter of definition, knowledge
exists if an individual is aware of the relevant facts. 5 Intent, as distinguished
from knowledge, is not a separate factual question.
Here, a knowing misstatement in the application about the drivers in
the household was material if it would have caused Viking either not to issue
the policy or to increase the premium. The following is undisputed. Viking
required Hawkins to disclose all persons of legal driving age who resided with
her. Hawkins knew Bradley was living with her, was of driving age, and was
not disclosed. The only evidence as to the effect of Bradley’s omission is
from a Viking witness who stated the insured would have had a higher
premium throughout the life of the policy. In other words, Viking would not
have refused to insure had it known about the son, but it would have charged
more. Indeed, that is what Viking did after the accident — force-placed the
son on the policy and increased the premium.
In analyzing whether Viking has shown enough, we start with the
possibility that failure to disclose the additional driver may not have had an
effect on Viking’s risk for a UM claim. We suggest that possibility because
“UM coverage proceeds are paid to the injured insured to cover the
insured’s own claims against uninsured third parties. Liability insurance
covers claims against the insured by third parties; UM insurance covers
claims of the insured against uninsured third parties.” JACKSON AND

5
Knowledge of existing facts can be successfully disputed. In one case, an insured
omitted he had high blood pressure on his insurance application. Life Ins. Co. of Va. v.
Shifflet, 359 F.2d 501, 503 (5th Cir. 1966). The facts showed the insured indeed had high
blood pressure, but he had never been told so. Id. at 503–04. Under Florida law, the court
held there was no “knowing” misrepresentation. Id. at 504 & 504 n.3. Here, Hawkins had
actual knowledge of the requested facts.

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CHILDRESS, MISSISSIPPI INSURANCE LAW § 18:1. Potentially, then, the
safety record, age, driving abilities, and even the number of insured drivers
would not affect the premium charged for insuring against the risk that a
future, as yet unidentifiable, at-fault driver of an uninsured vehicle would
collide with the insured. Then again, maybe it would. Viking’s evidence,
though, did not address the risk in that way. The UM coverage was a separate
component of the premium, but the record is silent as to whether the UM
component would have changed if another driver were added to the policy.
The only evidence was that the premium for the policy would have been
increased because of the additional driver.
Though we pose this question, there has been no argument here that
Viking’s evidence was insufficiently focused. In addition, though we find no
Mississippi state court decisions, this court has held that under that state’s
law, the specific coverage sought by an insured need not “be related to risks
concealed by an insurance applicant in order for the concealed facts to be
material.” Carroll, 166 F.3d at 806 n.18 (quoting Wesley v. Union Nat’l Life,
919 F. Supp. 232, 234 (S.D. Miss. 1995)). 6 In the absence of any argument
along these lines, we accept that materiality is not affected by the relationship
between the false statement and the specific coverage being sought in
litigation. It is enough that the falsity was material to the decision of the
company to issue the policy at the agreed price.
Consequently, Viking could have voided the policy. Of course, Viking
did not do so. Instead, it chose to deny coverage. By not voiding, Viking’s

6
This also seems to be the majority rule: “In most jurisdictions, a
misrepresentation is considered material and sufficient grounds for rescission or denial of
a claim regardless of whether the fact misrepresented has any causal connection with the
death or loss involved in the claim.” John Dwight Ingram, Misrepresentations in Applications
for Insurance, 14 UNIV. MIAMI BUS. L. REV. 103, 111 (2005).

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policy remained in effect. Do the statutory and judicial prohibitions against
limiting minimum UM coverage therefore still apply? We have been shown
nothing from Mississippi caselaw to assist in deciding whether the rather
demanding UM caselaw would apply to a voidable, but retained, insurance
policy. Importantly, though, and to use the vernacular, this does not seem to
us to be a situation in which the insurance company is trying to have its cake
and eat it too. That is because the benefit to Viking was relatively small —
maintaining a policy on one person’s vehicles. Also, the insured received
some benefit by still having insurance. Though ambiguities in insurance-
policy terms are interpreted in favor of the insured, Mississippi Farm Bureau
Cas. Ins. Co. v. Powell, 336 So. 3d 1079, 1084 (Miss. 2022), we are dealing here
with ambiguity in what Mississippi law would be on these unusual facts.
Seeking a reasonable legal interpretation will be our approach.
We conclude that if an insurer declines to exercise the greater power
to void a policy, it still retains the lesser power to exercise a contractual right
to deny coverage. The Safeway court was concerned that material
misrepresentations undermine insurers’ ability to make proper assessments
of risk and set premiums. Safeway, 185 So. 3d at 980. Those same concerns
are present here and are not altered by the fact that Viking chose not to void
the policy. Accordingly, Viking had the right to deny the plaintiffs’ claim.
AFFIRMED.

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